FOIA Requests in 120-Day Limbo — Or Are They?

February 25, 2009

The open government community took heart January 21, 2009, when President Obama reversed President Bush's policy and ordered most federal agencies to err on the side of disclosure when responding to FOIA requests.

But a number of agencies still seem to be operating under the old policies. The question is: why?

The easy answer: Obama ordered the Justice Department to come up with guidelines for implementing his order. There is some confusion about the deadline. Obama's Jan. 21 FOIA memo did not mention any deadline; a White House press release of the same day referred to a 120-day deadline. But other sources have referred to a 90-day deadline. Agencies could take further time to come up with their own internal guidelines. Until new orders come through, many bureaucrats are inclined to follow the old orders.

But that may not get them off the hook. Within days, on January 24, Justice sent all agencies a memo notifying that the Obama policy was "effective immediately." Scott A. Hodes, a FOI lawyer, wrote about it in an article in LLRX.com on February 8.